On November 24, 2011, B.C.’s Bill 16 ¹ received royal assent. The Bill radically replaces B.C.’s existing Family Relations Act ², an antiquated piece of legislation last updated in 1978.

Sweeping changes to B.C.’s family law will result from the enactment of its new Family Law Act. The major amendments applicable to power of attorney/estate planning/litigation include the fact that the Act will allow planning for a parent’s death by way of the appointment of a testamentary guardian, provided certain conditions are met. The Act also permits the appointment of a standby guardian, in certain situations where a parent is facing terminal illness or incapacity. The new legislation will also provide clarification to pension division after marriage breakdown.

Arguably, the most radical and controversial reform will be the fact that common law spouses will now receive the same rights to property division as married spouses upon the breakdown of the relationship (subject to certain exceptions such as property gifted, inherited or owned prior to marriage). This is radically different from the law in other provinces, such as Ontario, where only married spouses are entitled access to/reliance upon the family property/matrimonial property provisions of the provincial Family Law Act. This is also a drastic change to the law since the Supreme Court of Canada ruled in the B.C. case of Nova Scotia (Attorney General) v. Walsh ³ that common law spouses ought not to have the same property law rights as married spouses, a decision predicated on the presumed ‘choice’ that common law spouses make to not marry and, therefore, to not participate in family law-mandated property division upon marriage breakdown.

Given that couples in B.C. need only live together continuously in a marriage-like relationship for a period of two (2) years before they are considered “spouses” within the meaning of the Act and, therefore, able to obtain marriage-like property division upon relationship breakdown, there will no doubt be an increase in the number of cohabitation agreements being signed prior to such relationships being entered into. The nature and types of claims brought by surviving spouses after the death of an unmarried cohabiting spouse are likely to change as well, such that reliance on equitable remedies such as constructive trust may decline. The implications of this amendment alone are potentially vast and, as such, it will be interesting to see how the jurisprudence unfolds on this particular issue.

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1. http://www.leg.bc.ca/39th4th/1st_read/gov16-1.htm
2. [RSBC 1996] CHAPTER 128, http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96128_01
3. [2002] 4 S.C.R. 325, 2002 SCC 83, http://scc.lexum.org/en/2002/2002scc83/2002scc83.html